Demurrer, “motion to enter judgment,” and in the alternative, motion for judgment on the pleadings by defendant Dana Zhang

1. Requests for Judicial Notice

The requests by Defendant Dana Zhang for judicial notice in support of her demurrer and “motion to enter judgment” are GRANTED IN PART AND DENIED IN PART. The requests are granted as to the first amended complaint, this Court’s December 3, 2013 Order granting Zhang’s motion for judgment on the pleadings, and this Court’s July 26, 2013 Order sustaining defendant Mid-Century Insurance Company’s demurrer. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records].) The requests are otherwise denied. (See Cal. Rules of Court, rule 3.1306, subd. (c) [“A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material.”]; see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].)

The requests by Plaintiffs Linda Shao and Louis Wang for judicial notice in support of their oppositions is GRANTED IN PART AND DENIED IN PART. The request is granted as to the second amended complaint (“SAC”). (See Evid. Code, § 452, subd. (d).) The request is otherwise denied. (See Cal. Rules of Court, rule 3.1306, subd. (c); see also Gbur, supra, 93 Cal.App.3d at p. 301.)

2. Demurrer

Zhang demurs to the third cause of action for intentional misrepresentation, the fourth cause of action for negligent misrepresentation, and the fifth cause of action for negligence in the SAC. Zhang’s arguments as to the causes of action are separated by each individual plaintiff.

Plaintiffs’ contention that the motion is untimely is not well founded. The SAC was filed on January 6, 2014, while the demurrer was filed on January 7, 2014.

a. Shao

Zhang argues that Shao has alleged no insurance “claim” that should have been reported to Mid-Century. This argument is belied by paragraph 25, which alleges that Zhang reported a claim and Mid-Century’s claim adjuster would contact Shao. (SAC, ¶ 25.) Whether there actually was “nothing for Mid-Century to do” as Zhang asserts is beyond the scope of this demurrer. (Comm. on Children’s Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213-14 [“A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.”].) Zhang’s argument also improperly relies on facts falling outside the pleadings, which the Court has not considered.

Zhang contends Shao’s allegation that Zhang breached her duty is barred by the doctrine of collateral estoppel based on this Court’s July 26, 2013 Order sustaining Mid-Century’s demurrer. Collateral estoppel bars re-litigation of an issue determined in a prior action. (See Malkoskie v. Option One Mortg. Corp. (2010) 188 Cal.App.4th 968, 976; Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 90, quoting People v. Carter (2005) 36 Cal.4th 1215, 1240 [“The doctrine of collateral estoppel bars relitigation of an issue decided at a previous proceeding if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].” (quotations omitted)].) The issue Zhang wishes to keep Plaintiff from relitigating was not determined in a “previous action/proceeding.” According to Zhang, it was determined in the same lawsuit as to another defendant. Zhang’s reliance in her reply on Barker v. Hull (1987) 191 Cal.App.3d 221, 226, is misplaced because Barker involved the preclusive effect of a default judgment, not a demurrer. Zhang has otherwise failed to cite authority for the proposition that collateral estoppel applies to the issue of duty based on a demurrer by another defendant. (See Barker, supra, 191 Cal.App.3d at p. 226 [“[W]e think the appropriate principle is that, while the party urging the estoppel must prove that the issue was actually litigated and that evidence was not restricted . . . .”].)

Shao’s detriment allegation is not insufficient. Shao alleges that Zhang increased Shao’s litigation costs by failing to follow Mid-Century’s normal claim procedures by losing a recording of the car accident. (See SAC, ¶¶ 56-57, 68-69, 71, 73, 78.)

Zhang’s argument regarding an intervening cause lacks merit. Although Zhang waited two years before contacting Mid-Century, she alleges she did so because she relied on Zhang’s representations that a claim was filed. (Id., ¶ 49, 59, 71.) Shao did not contact Mid-Century until the opposing insurance company failed to pay her personal and medical damages. (Id., ¶ 49.)

Zhang maintains that Shao failed to allege justifiable reliance. This is not well founded: Zhang allegedly reported a claim. (Id., ¶ 25.) As noted, Shao waited two years before contacting Mid-Century because Shao relied on Zhang’s representations that a claim was filed. (Id., ¶ 49, 59, 71.)

Accordingly, Zhang’s demurrer as it relates to Shao is OVERRULED.

b. Wang

Zhang contends that there is no allegation that Wang was Zhang’s client to create a duty. Shao only alleges that Zhang owed Wang a duty of care as the “intended beneficiary” under Shao’s insurance contract with Mid-Century without further explanation. (SAC, ¶ 24.) Wang has not alleged any facts giving rise to a duty of care by Zhang to Wang in the absence of contractual privity. (Biakanja v. Irving (1958) 49 Cal.2d 647, 650 [“The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached the defendant’s conduct, and the policy of preventing future harm.”].) Moreover, Plaintiffs did not respond to Zhang’s contention in their opposition, and therefore, implicitly concede that the argument has merit. Plaintiffs fail to explain how they can cure this defect in their third pleading. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [the burden is on plaintiffs to show in what manner they can amend the complaint, and how that amendment will change the legal effect of the pleading].)

Accordingly, Zhang’s demurrer as it relates to Wang is SUSTAINED WITHOUT LEAVE TO AMEND.

3. “Motion to Enter Judgment,” and in the Alternative, Motion for Judgment on the Pleadings

Zhang’s “motion to enter judgment” is DENIED. The Court construes Zhang’s motion as a motion to strike. The motion was based on Plaintiffs’ purported failure to file an amended complaint. However, the SAC was filed on January 6, 2014.

Zhang’s motion for judgment on the pleadings is DENIED. Zhang argues that the action is barred by the doctrine of collateral estoppel. As noted, this argument lacks merit.